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1532-1609 Ocean Ave LLC v. Hertzan

Court Overturns Previous Standard Used in Common Law Fraud Cases in Landlord-Tenant Action

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Recitation, as required by CPLR 2219 (a) of the papers considered in review of this motion by NYSCEF Doc Nos: 9-29. DECISION/ORDER PROCEDURAL POSTURE AND BACKGROUND This is a nonpayment proceeding commenced against Dena Hertzan (“respondent”) on the basis of an unregulated lease agreement to pay rent in the amount of $1,800 per month commencing April 1, 2020 and expiring March 31, 2021. (NYSCEF Doc No. 1, petition 2; NYSCEF Doc No. 13 at 3-8.) The petition pleads that the premises are subject to the Rent Stabilization Law (“RSL”). (NYSCEF Doc No. 1, petition 7.) Respondent answered the petition through her attorney on May 17, 2023, and asserted, as is relevant for this motion, a rent overcharge defense and counterclaim. (NYSCEF Doc No. 4, attorney answer

10-19.) Respondent moved for leave to amend the answer filed on May 17, 2023, to include “an overcharge counterclaim pleading a common law fraudulent scheme to deregulate (emphasis added).” (NYSCEF Doc No. 9, notice of motion [sequence 1]; NYSCEF Doc No. 10, respondent’s attorney’s affirmation 8; NYSCEF Doc No. 14, proposed amended answer.) Respondent also moved for discovery related to her amended claims and defenses. (NYSCEF Doc No. 17, respondent’s exhibit E, proposed discovery demands.) Petitioner opposed on the basis that “[r]espondent has not sufficiently plead[ed] fraud or demonstrated the common law elements of fraud as articulated in Regina Metro Co. LLC v. State Div. of Hous. & Community Renewal, 35 NY3d 332 (2020)” and Burrows v. 75-25 153rd Street LLC, 215 AD3d 105 (1st Dept 2023). (NYSCEF Doc No. 20, petitioner’s attorney’s affirmation in opposition

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